01-000555N Luis Casco And Maria Casco, On Behalf Of And As Natural Guardians Of Jackeline Casco, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 9, 2001.

Summary: Infant`s injury to upper brachial plexus is not an injury to the brain or spinal cord. Moreover, infant`s mental status was normal. Consequently, claim not covered by the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS CASCO and MARIA CASCO, )

as parents and natural guardians )

JACKELINE CASCO, a minor, )

)

Petitioners, )

)

vs. ) Case No. 01 - 0555N

)

FLORIDA BIRTH - RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

hearing in the above - styled case on September 14, 2001, by vi deo

teleconference, with sites in Tallahassee and Fort Lauderdale,

Florida.

APPEARANCES

For Petitioner: Alexander Clark, Esquire

Law Offices of Bradley Winston, P.A.

8211 West Broward Boulevard, Suite 420

Plantation, Florida 33324

For Respondent: B. Forest Hamilton, Esquire

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, E ast, Suite 102

Tallahassee, Florida 32312

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Jackeline Casco, a

minor, suffered an injury for which compensation should be

awarded under the Florida Birth - Related Neurol ogical Injury

Compensation Plan.

PRELIMINARY STATEMENT

On February 5, 2001, Luis Casco and Maria Casco, as parents

and natural guardians of Jackeline Casco, a minor, filed a

petition (claim) with the Division of Administrative Hearings

(DOAH) for compensa tion under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

February 7, 2001. NICA reviewed the claim, and on Ap ril 18,

2001, gave notice that it had "determined that such claim is not

a 'birth - related neurological injury' within the meaning of

Section 766.302(2), Florida Statutes," and requested that the

administrative law judge "enter an order setting a hearing in

this cause on the issue of the compensability of this claim."

Such a hearing was duly held on September 14, 2001.

At hearing, the parties stipulated to the matters set forth

in paragraphs 1 and 2 of the Findings of Fact, and Petitioners'

Exhibit 1 (the m edical records filed with DOAH on February 5,

2001) and Respondent's Exhibit 2 (the deposition of Michael

Duchowny, M.D., filed with DOAH on July 10, 2001) were received

into evidence. The hearing transcript was filed on September 27,

2001, and the partie s waived the opportunity to submit proposed

final orders.

FINDINGS OF FACT

1. Petitioners, Luis Casco and Maria Casco, are the parents

and natural guardians of Jackeline Casco (Jackeline), a minor.

Jackeline was born a live infant on June 3, 2000, at Ho ly Cross

Hospital, a hospital located in Fort Lauderdale, Broward County,

Florida, and her birth weight was in excess of 2,500 grams.

2. The physician providing obstetrical services during the

birth of Jackeline was William Joyner, M.D., who was, at all

t imes material hereto, a participating physician in the Florida

Birth - Related Neurological Injury Compensation Plan, as defined

by Section 766.302(7), Florida Statutes.

Coverage under the Plan

3. Pertinent to this case, coverage is afforded under the

Plan when the claimants demonstrate, more likely than not, that

the infant suffered an "injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or resuscitation in the immediate

pos t - delivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

Jackeline's presentation

4. On March 29, 2001, following the filing of the claim for

compensation, Jackeline was examined by Mich ael S. Duchowny,

M.D., a board - certified pediatric neurologist associated with

Miami Children's Hospital, Miami, Florida. Dr. Duchowny reported

the results of that neurologic evaluation, as follows:

HISTORY ACCORDING TO THE FAMILY: Jackeline

was accompan ied by her mother who began by

explaining that Jackeline's major problem is

with regards to her left arm. She noted that

Jackeline had problems with her left arm

"since birth" and that she had acquired a

left clavicular fracture at delivery. The

birth to ok place at Holy Cross Hospital after

38 weeks gestation. Jackeline weighed 9

pounds, 7 ounces and was a difficult

delivery. She was moved from the regular

nursery to the special care nursery because

of a heart murmur, but this turned out to be

inconsequ ential.

Jackeline subsequently was referred for

reconstructive surgery and had this performed

three weeks ago. Dr. John Grossman did

transplantations of the sural nerves. The

cast came off one week ago. Mrs. Casco had

not yet seen return of neurologic functioning

in Jackeline.

Jackeline otherwise enjoys good health and

has been developing nicely. She rolled over

at four months and sat at five months. She

is described as being quite socially

interactive and attentive. There are no

problems with reg ards to her hearing or

vision and her feeding, swallowing and sleep

patterns are normal.

Jackeline's immunizations have been

administered on time. Apart from the

brachial plexus reconstruction, she has had

no other surgeries. She has an allergy to

amoxi cillin and sulfa drugs. She also has a

vesicle ureteral reflux which was diagnosed

after she presented with recurrent urinary

tract infections. She now takes Primsol

daily.

The FAMILY HISTORY reveals the father to be

32 and the mother to be 29 years old .

Jackeline has a 2 - year - old sister who is

healthy. There are two half brothers, ages 4

and 2 and two half sisters, ages 8 and 6. No

family members have degenerative illnesses,

mental retardation or cerebral palsy.

PHYSICAL EXAMINATION reveals an alert ,

socially responsive 9 - month - old infant. The

weight is 19 pounds. Head circumference

measures 44.1 cm, which approximates at the

50th percentile for age. The fontanelles are

both opened and flat and there are no cranial

or facial anomalies or asymmetri es.

Jackeline has no dysmorphic features or

evidence of spinal dysraphism. The neck is

supple without masses, thyromegaly or

adenopathy and the cardiovascular,

respiratory and abdominal examinations are

unremarkable. Jackeline does have a grade

2/6 inno cent ejection systolic murmur. There

are healed scars over both posterior calves

and left lateral neck.

Jackeline's NEUROLOGICAL EXAMINATION reveals

her to be quite socially attentive. She

displays a great deal of preverbal babbling

and has a pleasant d isposition. She is

appropriately fearful. There is good central

gaze fixation and conjugate following

movements. The pupils are 3 mm and briskly

reactive. The iris pigment is symmetric and

normal. The funduscopic examination

discloses no significant f indings. There are

no facial asymmetries and the tongue moves

well. The uvula is midline. There is no

drooling. Motor examination reveals an

asymmetry of movement of the upper

extremities, where there is active movement

on the right, but this is much l ess developed

on the left where Jackeline rarely grasps an

object unless it is placed in close proximity

to her hands. She does have individual

finger movements and has movement of the

hands, but her proximal limb movement,

especially the shoulder girdle, shows a

relative absence of movement. There is an

asymmetric slope to the shoulder indicating

deltoid atrophy. There are no frank

fasciculations. Jackeline's proximal muscle

strength is judge at 1 where her distal

strength is 4. The deep tendon refl exes are

asymmetric as well being 2 at the right

biceps and brachial radialis and 1 at the

right triceps. These same reflexes on the

left are not elicited. The knee jerks are

2.

Jackeline is able to sit with good balance

and has well developed head c ontrol. There

are no pathologic reflexes. The Moro

response is asymmetric with diminished left

arm movement. Jackeline grasps objects by

coming across the midline with her right

hand. The sensory examination is differed,

although Jackeline's withdrawal to

stimulation seemed less pronounced with the

left upper extremity. In contrast,

Jackeline's lower extremities muscle

strength, bulk and tone are normal and the

reflexes are likewise unremarkable. The

neurovascular examination reveals no

cervical, cran ial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Jackeline's examination discloses

no significant neurologic abnormalities apart

from her left upper extremity. Her

examination is consistent with a left Erb's

palsy and status post brachial plexus

reconstruction, but does not have a

significant return of functioning at this

point. In contrast, Jackeline's mental

status would appear to be normal and her

motor development has been proceeding

satisfactorily.

5. An Erb's palsy, such as that evidenced by Jackeline, is

a weakness of an upper extremity due to damage of the nerve roots

of the upper brachial plexus, 1 and does not involve the brain or

spinal cord. 2 Moreover, Jackeline's mental or cognitive status

has been described as ess entially normal. Consequently, while

Jackeline may have suffered a mechanical injury, permanent in

nature (to her right brachial plexus) during the course of birth,

she does not (for reasons appearing more fully in the Conclusions

of Law) qualify for cove rage under the Plan.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings. Section 766.301, et seq. , Florida Statutes.

7. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. Section 766.303(1),

Flor ida Statutes.

8. The injured "infant, his personal representative,

parents, dependents, and next of kin," may seek compensation

under the Plan by filing a claim for compensation with the

Division of Administrative Hearings. Sections 766.302(3),

766.303(2 ), 766.305(1), and 766.313, Florida Statutes. The

Florida Birth - Related Neurological Injury Compensation

Association, which administers the Plan, has "45 days from the

date of service of a complete claim . . . in which to file a

response to the petition a nd to submit relevant written

information relating to the issue of whether the injury is a

birth - related neurological injury." Section 766.305(3), Florida

Statutes.

9. If NICA determines that the injury alleged in a claim is

a compensable birth - related n eurological injury, it may award

compensation to the claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigned. Section 766.305(6), Florida Statutes. If, on the

other hand, NICA disputes the claim, as it has in the instant

case, the dispute must be resolved by the assigned administrative

law judge in accordance with the provisions of C hapter 120,

F lorida Statutes. Sections 766.304, 766.307, 766.309, and

766.31, F lorida Statutes.

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of t he

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediat e post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital.

Section 766.309( 1), Florida Statutes. An award may be sustained

only if the administrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." Section 766.31(1), Florida Statutes.

11. Pertinent to this case, "birth - related neurological

injury" is defined by Section 766.302(2), Florida Statutes, to

mean:

. . . injury to the brain or spinal cord of a

live infant weighing at least 2,500 grams at

birth cau sed by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

12. As the claimants, the burden rested on Petitioners to

demonstrate entitlement to compensation. Section 766.309(1)(a),

F lorida Statutes. See also Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977),

("[T]he burden of proof, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribunal") .

13. Here, the proof demonstrated that Jackeline did not

suffer an injury to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation that rendered her permanently

and substan tially mentally and physically impaired.

Consequently, the record developed in this case failed to

demonstrate that Jackeline suffered a "birth - related neurological

injury," within the meaning of Section 766.302(2), Florida

Statutes, and the subject claim is not compensable under the

Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida

Statutes. See also Florida Birth - Related Neurological Injury

Compensation Association v. Florida Division of Administrative

Hearings , 686 So. 2d 1349 (Fla. 1997).

14. Where, as here, the administrative law judge determines

that ". . . the injury alleged is not a birth - related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

Section 766.309(2), Florida Statutes. Such an order constitutes

final agency action subject to appellate court review. Section

766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fa ct and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by

Luis Casco and Maria Casco, as parents and natural guardians of

Jackeline Casco, a minor, be and the same is hereby denied with

prejudice.

DONE AND ORDERED this 9th day o f October, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of October, 2001.

ENDNOTES

1/ Dorland's Illustrated Medical Dictionary, Twenty - sixt h

Edition.

2/ According to Dr. Duchowny, an Erb's Palsy, a weakness of an

upper extremity due to damage of the nerve roots of the upper

brachial plexus, does not involve an injury to the central

nervous system. The "central nervous system" is commonly

u nderstood to mean "that portion of the nervous system consisting

of the brain and spinal cord." Dorland's Illustrated Medical

Dictionary, Twenty - sixth Edition.

COPIES FURNISHED:

(By certified mail)

Forest Hamilton, Esquire

Florida Birth - Related Neurolo gical

Injury Compensation Association

1435 Piedmont Drive, East, Suite 102

Post Office Box 14567

Tallahassee, Florida 32312

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Bradley Winston, Esquire

8211 West Broward Boulevard

Suite 420

Plantation, Florida 33324

William Joyner, M.D.

Atlantic Medical Building

1960 Northeast 47th Street

Second Floor

Fort Lauderdale, Florida 33308

Holy Cross Hospital

4725 North Federal Highway

Fort Lauderdale, Florida 33308

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General C ounsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Appeal with the Agency Clerk of the

Division of Administrative Hearings and a second copy, acc ompanied

by filing fees prescribed by law, with the appropriate District

Court of Appeal. See Section 120.68(2), Florida Statutes, and

Florida Birth - Related Neurological Injury Compensation Association

v. Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of

Appeal must be filed within 30 days of rendition of the order to

be reviewed.